Vol. 152, No. 4 — February 21, 2018

Registration

SOR/2018-23 February 12, 2018

ACCESS TO INFORMATION ACT

P.C. 2018-130 February 12, 2018

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to subsection 77(2) of the Access to Information Act (see footnote a), makes the annexed Order Amending Schedule I to the Access to Information Act (Office of the Administrator of the Fund for Railway Accidents Involving Designated Goods).

Order Amending Schedule I to the Access to Information Act (Office of the Administrator of the Fund for Railway Accidents Involving Designated Goods)

Amendment

1 Schedule I to the Access to Information Act (see footnote 1) is amended by adding the following in alphabetical order under the heading “Other Government Institutions”:

Office of the Administrator of the Fund for Railway Accidents Involving Designated Goods
Bureau de l’administrateur de la Caisse d’indemnisation pour les accidents ferroviaires impliquant des marchandises désignées

Coming into Force

2 This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the orders.)

Issues

The Safe and Accountable Rail Act (SARA) received royal assent on June 18, 2015. It includes amendments to the Canada Transportation Act (CTA) that enhance the federal rail liability and compensation regime. The new regime, which came into force on June 18, 2016, ensures that sufficient resources will be available in the event of a rail accident. It includes minimum insurance requirements for federally regulated railways and a supplementary, shipper-financed compensation fund — the Fund for Railway Accidents Involving Designated Goods (Rail Fund).

The Access to Information Act (ATIA), the Privacy Act (PA) and the Library and Archives of Canada Act (LACA) do not automatically apply to the Office of the Administrator of the Rail Fund (the Office), however. Given the characteristics and operations of the Office and the information that it will hold, it is important that these Acts apply to the Office in order to ensure the transparent handling and appropriate protection of that information.

The ATIA and PA apply to government institutions and each Act’s definition of “government institution” includes the institutions listed in Schedule I to the ATIA and the schedule to the PA, as the case may be. Therefore, the Office would have to be added to those schedules in order to make it subject to the ATIA and the PA. This would also make the Office subject to LACA, because LACA applies to government institutions under both the ATIA and PA.

Background

Under the new liability and compensation regime for rail, responsibility for rail accident costs is shared between railways and shippers. Specifically, railways are required to hold a minimum amount of third-party liability insurance, ranging from $25M to $1B, based on the type and volume of dangerous goods they carry annually (section 93.1 of the CTA).

For accidents involving crude oil (or any other goods which may be designated by regulation), railways are to be held liable without the need to prove fault or negligence up to their mandatory minimum level of insurance [subsection 152.7(1) of CTA]. The Rail Fund will cover all damages above the railways’ insurance level for accidents involving crude oil (or any other goods which may be designated by regulation).

The Rail Fund — a specified purpose account within the Consolidated Revenue Fund (CRF) [subsection 153.4(1) of the CTA] — is financed through a per-tonne levy on the movement of crude oil or other designated goods by rail. This levy is set at $1.69 for the year ending March 31, 2018, and will be indexed to inflation. Federally regulated railway companies are responsible for collecting the levy from shippers and remitting it to the Rail Fund.

The Minister of Transport has the authority to discontinue and reimpose the levy by order as necessary and for any specific time period (section 155.83 of the CTA). The previous government announced a notional fund capitalization target of $250 million. It is expected that the combined value of railways’ insurance and the fund would fully compensate the vast majority of rail accidents. However, there is no limit or cap placed on claims to the Rail Fund.

SARA also provides that the Governor in Council must appoint an Administrator of the Rail Fund. The Administrator’s responsibilities include establishing and paying out claims made against the Rail Fund, ensuring that records relating the Rail Fund and its administration are adequately maintained, and submitting an annual report to Parliament.

Under the CTA, in the event that a railway accident occurs that results in the need for compensation exceeding the amount held in the Rail Fund, the difference will be loaned from the CRF on terms and conditions set by the Minister of Finance. Any amount lent to the Rail Fund in this manner will be recovered through the levy on crude oil shipped by rail or on any other good that may be designated by regulation in the future, and potentially, through an additional levy on railways.

The administration of the Rail Fund is modelled on that of the Ship-Source Oil Pollution Fund (SOPF). The responsibilities of the Rail Fund Administrator and Deputy Administrator closely mirror those of the SOPF Administrator and Deputy Administrator. The SOPF Administrator and the Rail Fund Administrator were cross-appointed (i.e. the two positions are held by the same individual) for administrative efficiency.

In accordance with the CTA, the costs of administering the Rail Fund are to be paid out of the Rail Fund itself [subsection 154.2(3) of the CTA].

Objectives

The objectives are to make the Office subject to the ATIA, PA, and also, as a result, to LACA. Doing so would

Description

The objectives will be achieved through four orders-in-council, which will

“One-for-One” Rule

The “One-for-One” Rule does not apply to these instruments, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to these instruments, as there are no costs for small business.

Consultation

The instruments are one part of a larger initiative — SARA’s strengthened liability and compensation regime for rail. SARA was the subject of two rounds of stakeholder consultations, parliamentary debate and study by Standing Committees before it received royal assent.

The instruments simply extend to the Office the same information and privacy requirements that are currently applied to government institutions subject to the ATIA, PA and LACA, including the Office of the Administrator of the SOPF. Given the nature of the instruments, no specific consultations were conducted.

Rationale

Adding the Office to the lists of government institutions in Schedule I to the ATIA and the schedule to the PA will ensure that it is subject to the ATIA, PA and LACA, and will bring the Office under the same legal framework as other government institutions subject to those Acts, including the Office of the Administrator of the SOPF, with which it will be collocated.

Making the Office subject to the ATIA, PA and LACA will increase its transparency and accountability to Canadians and will ensure that personal information held by the Office is adequately protected.

These instruments do not involve any costs to Canadians or businesses, as they are part of an initiative that would simply extend to the Office the same information and privacy requirements that are currently applied to government institutions that are subject to the ATIA, PA and LACA. Any costs associated with the administration of the Rail Fund (including handling access to information requests and managing documents in accordance with the LACA) are to be paid out of the Rail Fund itself. This would not be considered an additional cost associated with these instruments, as this is already provided for in subsection 154.2(3) of the CTA.

Implementation, enforcement and service standards

The orders-in-council adding the Office to the lists of government institutions found in Schedule I to the ATIA and the schedule to the PA will come into force on the day they are registered. Due to the nature of these orders, enforcement strategies are not required.

Once the Office is subject to the ATIA, PA and LACA, the Rail Fund Administrator will be required to adhere to the service standards included in those Acts, including those relating to access request response timelines.

In terms of monitoring and reporting on performance, both the ATIA and PA require that the head of every government institution submits to Parliament an annual report on the administration of those Acts within the institution.

Contacts

Sarah Geh
Acting Director and General Counsel
Centre for Information and Privacy Law
Department of Justice Canada
284 Wellington Street
East Memorial Building, Room 3175
Ottawa, Ontario
K1A 0H8
Telephone: 613-960-4858
Email: sarah.geh@justice.gc.ca

Marcia Jones
Director
Rail Policy Analysis and Legislative Initiatives
Surface Transportation Policy
Transport Canada
330 Sparks Street
Ottawa, Ontario
K1A 0N5
Telephone: 613-998-1918
Email: marcia.jones@tc.gc.ca